1. The author of the
communication (dated 15 November 1989)is W. J. H., a citizen of the
Netherlands, currently residing in Belgium. He claims to be a victim of a
violation by the Netherlands of article 14, paragraphs 2 and 6, of the
International Covenant on Civil and Political ,Rights. He is represented by
counsel.

THE FACTS AS SUBMITTED BY THE
AUTHOR:

2.1 The author was
arrested on 8 December 1983 and kept in pre- trial detention until 8
February 1984. On 24 December 1985, the Arnhem Court of Appeal convicted him
on a variety of criminal charges, including forgery and fraud. On 17 March
1987, the Supreme Court (Hoae Raad) quashed the earlier conviction and
referred the case to the 's-Hertogenbosch Court of Appeal, which acquitted
the author on 11 May 1988.

2.2 Pursuant to sections
89 and 591a of the Code of Criminal Procedure, the author subsequently filed
a request with the 's- Hertogenbosch Court of Appeal for award of
compensation for damages resulting from the time spent in pre-trial
detention and for the. costs of legal representation. Section 90, paragraph
1, of the Code of Criminal Procedure provides that, after an acquittal, the
Court may grant compensation for reasons of equity. On 21 November 1988, the
Court of Appeal rejected the author's request. The Court was of the opinion
that it would not be fair to grant compensation to the author, since his
acquittal was due to a procedural error: it referred in this context to the
judgment of the Arnhem Court of Appeal of 24 December 1985, by which the
author was convicted on the basis of evidence that later was found to have
been irregularly obtained.

2.3 The author claims
that, as no legal remedy for the denial of compensation is available,
domestic remedies have been exhausted.

THE COMPLAINT:

3.1 The author claims that
the 's-Hertogenbosch Court of Appeal, by its decision of. 21 November 1988,
violated his right to be considered innocent, pursuant to article 14,
paragraph 2, of the Covenant. He submits that, since he was not found guilty
by the court, he should not suffer financial damage as a result of the
institution of criminal proceedings against him.

3.2 He further contends
that the failure to grant him compensation constitutes a violation of
article 14, paragraph 6, of the Covenant. He claims that the judgment of the
Arnhem Court of Appeal of 24 December 1985 was a final decision within the
meaning of article 14, paragraph 6, because it was the judgment of the
highest factual instance. In this context, he argues that the subsequent
judgments acquitting the author, constitute "new facts" within the meaning
of article 14, paragraph 6. He finally claims that. his pre- trial detention
should be considered equivalent to "punishment" in said paragraph.

The State party's observations
and author's comments:

4.1 By submission of 9
July 1991 the State party argues that the communication is inadmissible on
the ground of non-exhaustion of domestic remedies. It submits that the
author did not invoke article 14, paragraph 6, of the Covenant when
requesting compensation, but only argued that doubt concerning guilt or
innocence should not be allowed to influence his right to compensation under
article 89 of the Code of Criminal Procedure. The State party further
contends that the author could, pursuant to article 1401 of the Civil Code,
have demanded compensation in a civil action.

4.2 The State party also
argues that article 14, paragraphs 2 and 6, of the Covenant does not apply
to the author's case, and that the communication is therefore inadmissible
as incompatible with the provisions of the Covenant under article 3 of the
Optional Protocol.

4.3 The State party
submits that the presumption of innocence, within the meaning of article 14,
paragraph 2, does not preclude the imposition of pre-trial detention; it
refers in this connection to article 9, paragraph 3, of the Covenant. It
states that the author did not submit that his detention was unlawful and
argues that no provision of the Covenant grants an accused the right to
compensation for having undergone lawful pre-trial detention, in the event
that he is subsequently acquitted.

4.4 The State party
further notes that the judgment of the Supreme Court of 17 March 1987 cannot
be regarded as a "new fact" within the meaning of article 14, paragraph 6,
but that it is the outcome cf an appeal and as such a continuation of the
proceedings concerning the facts conducted before the lower courts. It also
argues that, since an appeal to the Supreme Court. is the final domestic
remedy, the judgment of the Arnhem Court of Appeal of 24 December 1985
cannot be regarded as a "final decision". Finally, it contends that
pre-trial detention cannot be considered as punishment within the meaning of
article 14, paragraph 6, as it is an initial coercive measure and not
imposed as a result of a conviction.

5.1 In his reply to the
State party's observations, the author contests that a civil action under
article 1401 of the Civil Code is available to him. He submits that a civil
claim for compensation is only possible in case of governmental tort and
refers in this connection to a judgment of the Supreme Court of 7 April
1989. Since his pre-trial detention is to be considered-lawful, the question
of tort does not arise in his case. He further submits that it is highly
unlikely that a civil court will refute the criminal court's judgment.

5.2 The author also states
that he was not obliged to invoke the specific article's of the Covenant
during the court proceedings. In this context, he refers to the Committee's
Views in communication No. 305/1988%He submits that his argument that doubt
about guilt or innocence should not be allowed to influence his right to
compensation, clearly referred to the presumptio innocentiae, as reflected
in article 14, paragraph 2.

5.3 The author submits
that the interpretation by the State party of article 14, paragraphs 2 and
6, is too restrictive. He argues that there is no reason to make a
distinction between a reversal of a conviction and an acquittal on appeal,
as far as compensation for damages is concerned. He further stresses that an
accused, who has not been proved guilty according to the law, should not
bear the costs incurred in connection with the criminal prosecution. In this
connection, he submits that his acquittal was exclusively due to the legal
assistance provided by his counsel. He argues that under these circumstances
the principle of fair procedure implies that the acquitted accused cannot be
burdened with the costs of the defence.

ISSUES AND PROCEEDINGS BEFORE
THE COMMITTEE:

6.1 Before considering any
claims contained in a communication, the Human Rights Committee must, in
accordance with rule 87 of its rules of procedure, decide whether or not it
is admissible under the Optional Protocol to the Covenant.

6.2 With respect to the
author's allegation of a violation of the principle of presumption of
innocence enshrined in article 14, paragraph 2, of the Covenant, the
Committee observes that this provision applies only to criminal proceedings
and not to proceedings for .compensation; it accordingly finds that this
provision does not apply to the facts as submitted.

6.3 With regard to the
author's claim for compensation under article 14, paragraph 6, of the
Covenant, the Committee observes that the conditions for the application of
this article are:

(a) A final conviction
for a criminal offence;

(b) Suffering of
punishment as a consequence of such conviction: and

(c) A subsequent reversal
or pardon on the ground of a new or newly discovered fact showing
conclusively that there has been a miscarriage of justice;

The Committee observes that
since the final decision in this case, that of the Court of Appeal of 11 May
1988, acquitted the author, and since he did not suffer any punishment as
the result of his earlier conviction of 24 December 1985, the author's claim
is outside the scope of article 14, paragraph 6, of the Covenant.

7. The Human Rights
Committee therefore decides:

(a) That the
communication is inadmissible under article 3 of the Optional Protocol;

(b) That this decision
shall be transmitted to the State party, to the author and to his counsel.